NAHAS v. SHORE MEDICAL CENTER et al
Filing
14
OPINION. Signed by Judge Robert B. Kugler on 9/29/2014. (dmr)
NOT FOR PUBLICATION
(Doc. No. 6)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_________________________________________
:
FREDERICK NAHAS, M.D.,
:
:
Plaintiff,
:
Civil No. 13-6537 (RBK/AMD)
:
v.
:
:
OPINION
SHORE MEDICAL CENTER, STEVEN P.
:
NACHTIGALL, JEFFREY GOSIN,
:
PEYTON DEARBORN, AND PETER
:
JUNGBLUT
:
:
Defendants.
:
_________________________________________ :
KUGLER, United States District Judge:
Before the Court is the motion of Shore Medical Center, Steven P. Nachtigall,
Jeffrey Gosin, Peyton Dearborn, and Peter Jungblut (collectively “Defendants”) to
dismiss the complaint of Frederick Nahas (“Plaintiff”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). In the alternative, Defendants move to stay the proceedings pending
resolution of a state-court action. For the reasons set forth below, the motion to dismiss
will be granted and the motion to stay the proceedings will be dismissed as moot.
I.
FACTUAL BACKGROUND
Plaintiff is a Lebanese-American medical doctor. (Compl. ¶ 8.) He is board-
certified by the American Board of Surgery in General Surgery and Vascular Surgery.
(Id. ¶ 9.) In 1978, he was first granted attending staff privileges in each of his boardcertified specialties at Defendant Shore Medical Center (“SMC”). (Id. ¶ 10.) SMC is a
hospital that admits approximately 10,000 patients and treats approximately 50,000
Emergency Department patients per year. (Id. ¶ 12.) In or about 1990, in response to
advances in medical science, SMC established a new category of surgery, endovascular
surgery, which required a separate application for privileges. (Id. ¶ 17.) Endovascular
surgery is a minimally invasive surgery which involves the treatment of vascular diseases
from inside the blood vessels, and often refers to procedures such as angioplasties and
stents.1 Plaintiff subsequently received attending staff privileges for endovascular
surgery at SMC. (Id. ¶ 18).
Defendant SMC is a hospital located in Somers Point, New Jersey, and serves
Cape May County and parts of Atlantic County, New Jersey. (Id. ¶ 11.) Defendant
Nachtigall is a medical doctor who was President or past-President of medical staff at
SMC during the time period relevant to this complaint. (Id. ¶ 13.) Defendant Gosin is a
medical doctor who was the head of vascular surgery during the time period relevant to
this complaint. (Id. ¶ 14.) Defendant Jungblut is a medical doctor who was Vice
President of Medical Affairs at SMC during the time period relevant to this complaint.
(Id. ¶ 15.) Defendant Dearborn is a medical doctor who was an anesthesiologist,
contracted by SMC, to provide anesthesia at SMC and the SMC outpatient surgery
facility, during the time period relevant to this complaint. (Id. ¶ 16.)
In 2003 plead guilty to criminal charges related to Medicare billing. (Id. ¶ 24.)
As a result of his conviction, Plaintiff’s medical license was suspended for six months
and his medical staff membership and clinical privileges at SMC were suspended for
three years. (Id. ¶¶ 25-26.) SMC also declined to renew Plaintiff’s general surgery,
See Patients: FAQs – Endovascular Surgery, VASCULAR & ENDOVASCULAR SURGERY SOCIETY,
http://vesurgery.org/patients/endovasc.html (last visited Sept. 29, 2014).
1
vascular surgery, and endovascular surgery privileges after his 2003 conviction. In 2006,
when Plaintiff applied to have his privileges reinstated,2 he alleges that he encountered
difficulties because of animus toward him on the part of other doctors who had privileges
at SMC, including Defendants. (Id. ¶¶ 31-32.) Plaintiff attributes the alleged animus
both to a “competitive relationship” with these physicians, as well as hostility toward
Plaintiff’s Middle Eastern ethnic background. (Id. ¶ 31.) Plaintiff alleges that his
application for reinstatement was initially denied due to misrepresentations on the part of
Defendants Gosin and Jungblut. (Id. ¶ 33.) However, through an administrative process
known as a “Fair Hearing” request, Plaintiff secured a recommendation that SMC
reinstate Plaintiff’s privileges. (Id. ¶ 38.)
After SMC’s Medical Executive Committee (“MEC”), on which Defendants
Gosin and Jungblut sit, attempted to appeal the Fair Hearing panel’s findings, Plaintiff
commenced an action in New Jersey Superior Court, seeking reinstatement as well as
monetary damages. (Id. ¶¶ 40-41.) Plaintiff obtained an interim Order from that court on
March 31, 2009, which required SMC to reinstate Plaintiff’s general surgery and vascular
surgery privileges, and to cooperate with Plaintiff in the process of reinstating his
endovascular surgery privileges. Since that time, Plaintiff has been providing care to
patients at SMC. (Id. ¶ 45.) However, Plaintiff alleges that Defendants have acted in
contravention of the court’s order by stymieing his efforts to obtain endovascular surgery
privileges. He alleges that Defendant Jungblut has opposed his efforts, and set
“substitute criteria” in place that would apply to his reinstatement application, instead of
the criteria ordered by the court. (Id. ¶ 54.) The “substitute criteria” allegedly contains
2
Plaintiff does not specify which privileges he applied to have reinstated in 2006 (See Compl. ¶ 28.)
requirements that are impossible to satisfy and were designed as a result of Defendants’
ethnic bias and anticompetitive motives. (Id. ¶ 55.) In 2010, SMC’s Credentials
Committee recommended that Plaintiff be allowed to perform endovascular surgeries
with a proctor. (Id. ¶ 60.) However, the Medical Executive Committee decline to follow
the recommendation. (Id. ¶ 62.)
Plaintiff subsequently sought a review of this decision through the Fair Hearing
process once again. (Id. ¶ 63.) Over Plaintiff’s objection, he alleges that the Defendants
appointed a “Hearing Officer” to adjudicate the Fair Hearing dispute, rather than a
“Hearing Panel.” (Id. ¶ 65.) On August 27, 2012, the Hearing Officer upheld the
Medical Executive Committee’s determination. (Id. ¶ 70.) Plaintiff then appealed the
Hearing Officer’s decision to the Board of Trustees, which affirmed again. (Id. ¶ 71.)
Additionally, Plaintiff alleges that after his general and vascular surgery
privileges were reinstated in 2009, Defendants began investigating and disciplining him
for performing procedures that he understood and considered to be under the umbrella of
vascular surgery, and not endovascular surgery. (Id. ¶¶ 83-84.) Plaintiff alleges that
there is no clear distinction between the two, and SMC does not publish a list of which
procedures fall under which category. (Id. ¶ 81.) He also alleges that similarly situated
doctors, who had only vascular privileges but performed the same procedures, but were
not of Plaintiff’s ethnic background, were not disciplined. (Id. ¶¶ 84-87.) The discipline
included a fourteen-day suspension in September 2011, which Plaintiff attributes to
anticompetitive and discriminatory motives. (Id. ¶ 102.) Plaintiff’s suspension was
announced in a letter, circulated to hospital staff, and included notice that he would not
be allowed on the premises, an action he claims certain staff members believed had never
happened before. (Id. ¶ 108.) The staff was additionally instructed to call the police if
Plaintiff appeared on site, to escort him off the property. (Id. ¶ 109.)
Further, Defendant Nachtigall advised Plaintiff in a letter that he was referring
Plaintiff to the Physician’s Assistance Program of New Jersey for a mental and
behavioral health examination. (Id. ¶ 111.) In 2012 Defendant Nachtigall sent Plaintiff
another letter stating that the MEC was initiating an investigation, and had formed an ad
hoc Investigating Committee, to examine Plaintiff’s conduct. (Id. ¶ 115.) Defendant
Nachtigall later told Plaintiff that SMC had referred certain of Plaintiff’s procedures to an
outside medical review organization, National Peer Review Corporation. (Id. ¶ 117.)
Plaintiff asked an independent expert to review those same procedures, and that doctor
issued a report in early 2013 confirming that all Plaintiff’s procedures were acceptable.
(Id. ¶ 121.) After the Investigating Committee issued its report, Plaintiff was placed on a
Focused Professional Practice Evaluation (“FPPE”), in which Defendants would review
his clinical performance for an indefinite period of time. (Id. ¶ 122.) Plaintiff also
received a letter around this time informing him that he would no longer be permitted to
perform certain diagnostic procedures because those procedures could only be performed
by doctors with endovascular privileges. (Id. ¶ 123.)
Plaintiff filed this suit, alleging that SMC’s opposition to his reinstatement of
endovascular surgery privileges violates the Sherman Antitrust Act, as they constituted an
attempt to monopolize the market for advanced vascular surgery. He also alleges civil
rights violations under 42 U.S.C. § 1981 and 42 U.S.C. § 1985, an unfair competition
claim under the Lanham Act, and possibly a federal constitutional due process violation.
He further advances claims under state law for violations of the New Jersey Law Against
Discrimination (“NJLAD”), breach of contract, tortious interference, a violation of due
process under the New Jersey Constitution, and defamation.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for
failure to state a claim upon which relief can be granted. When evaluating a motion to
dismiss, “courts accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008)). In other words, a complaint survives a motion to dismiss if it contains
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must "tak[e] note of
the elements a plaintiff must plead to state a claim." Id. (quoting Iqbal, 556 U.S. at 675).
Second, the court should identify allegations that, "because they are no more than
conclusions, are not entitled to the assumption of truth." Id. at 131 (quoting Iqbal, 556
U.S. at 680). Finally, "where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief." Id. (quoting Iqbal, 556 U.S. at 680). This plausibility
determination is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Iqbal, 556 U.S. at 679. A complaint cannot
survive where a court can only infer that a claim is merely possible rather than plausible.
Id.
III.
DISCUSSION
A. Antitrust Claims3
a. Antitrust Standing
Defendants first argue that Plaintiff lacks antitrust standing. Antitrust standing is
an essential element of a Sherman Act antitrust claim. Ethypharm S.A. France v. Abbott
Labs., 707 F.3d 223, 232 (3d Cir. 2013). The test for standing requires a court to
analyze:
(1) the causal connection between the antitrust violation and the harm to the
plaintiff and the intent by the defendant to cause that harm, with neither factor
alone conferring standing; (2) whether the plaintiff's alleged injury is of the
type for which the antitrust laws were intended to provide redress; (3) the
directness of the injury, which addresses the concerns that liberal application
of standing principles might produce speculative claims; (4) the existence of
more direct victims of the alleged antitrust violations; and (5) the potential for
duplicative recovery or complex apportionment of damages.
In re Lower Lake Eric Iron Ore Antitrust Litig., 998 F.2d 1144, 1165-66 (3d Cir. 1993).
Defendants argue that specifically, the second element, antitrust injury, is lacking in this
case. They argue that Plaintiff is seeking to protect himself, a competitor, rather than
competition in the market. Defendants cite the Sixth Circuit’s holding that an antitrust
lawsuit may be appropriately dismissed when the plaintiff only alleges harm in his
“capacity as a competitor in the marketplace, [and] not as a defender of marketplace
competition.” B&H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 265 (6th Cir.
3
This section only goes on to discuss concerted action in connection with the individual defendants. The
Sherman Act Sections 1 and 2 claims fail against SMC because “as a matter of law, a hospital cannot
conspire with its medical staff.” Urdinaran v. Aarons, 115 F. Supp. 2d 484, 488 (D.N.J. 2000).
2008) (citing Indeck Energy Servs. v. Consumer Energy Co., 250 F.3d 972, 977 (6th Cir.
2000)).
The Third Circuit, however, has not adopted such an approach to antitrust
standing. “[T]he fact that the antitrust laws are intended to protect competition rather
than competitors does not mean that a competitor is never a proper antitrust plaintiff.”
Angelico v. Lehigh Valley Hosp., Inc. 184 F.3d 268, 275 n.1 (3d Cir. 1999). Rather,
“protecting a competitor’s ability to compete . . . is clearly in the interest of competition.”
Id.; see also In re Lower Lake Erie Iron Ore Antirust Litig., 998 F.2d 1144, 1164 n.14 (3d
Cir. 1993) (finding that direct competitors of alleged conspirators had “no standing
problem”). The Third Circuit has specifically allowed an antitrust claim by a physician
who was denied surgical privileges to proceed, finding that “the existence of an ‘antitrust
injury’ is not typically resolved through motions to dismiss.” Brader v. Allegheny Gen.
Hosp., 64 F.3d 869, 876 (3d Cir. 1995).
Defendants’ argument against standing appears to be that Plaintiff is a competitor.
Even if that resulted in a lack of standing under Sixth Circuit law, the law in this circuit is
clear that courts should not find a lack of antitrust injury at the motion to dismiss stage
merely because a plaintiff is a competitor.
b. Section 1 Sherman Act Claim – Count I
Plaintiff alleges that Defendants acted in concert to restrain trade by wrongfully
suspending Plaintiff’s hospital privileges, and as a result of their exclusion of Plaintiff
from the endovascular intervention market, consumers had restricted choices and were
forced to pay higher prices.
To plead a Section 1 Sherman Act claim, a plaintiff must allege “(1) concerted
action by the defendants; that produced anti-competitive effects within the relevant
product and geographic markets; (3) that the concerted actions were illegal; and (4) that it
was injured as a proximate result of the concerted action.” Howard Hess Dental
Laboratories Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 253 (3d Cir. 2010) (citing Gordon
v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir. 2005)).
Plaintiff has failed to allege sufficient facts in his Complaint to support a Section
1 Sherman Act claim. A Plaintiff must allege enough “factual matter (taken as true) to
suggest that an agreement was made.” Twombly, 550 U.S. at 556 (emphasis added).
Here, Plaintiff has alleged ample parallel conduct, which he argues is more than enough
to support the concerted action requirements. Yet, “an allegation of parallel conduct and
a bare assertion of conspiracy will not suffice.” Id. In his Complaint, Plaintiff merely
points to the actions of the Defendants on and after early 2009, which he claims
“demonstrate collusion and conspiracy to unlawfully and wrongfully prevent [Plaintiff]
from his remaining privileges for anticompetitive and discriminatory purposes.” (Compl.
¶ 73.)4 Plaintiff wants the Court to make an inference, but “[w]ithout more, parallel
conduct does not suggest conspiracy.” Twombly, 550 U.S. at 556-57. “[T]erms like
‘conspiracy,’ or even ‘agreement,’ are border-line: they might well be sufficient in
The closest Plaintiff comes to alleging an agreement in his Complaint is where he states that in 2010, “in
furtherance of the Defendants’ anticompetitive and discriminatory motives, the remaining members of the
MEC in concert with Defendants Gosin and Defendant Jungblut, who were also members of the MEC,
accepted Defendants Gosin and Jungblut’s Substitute Criteria to evaluate Dr. Nahas’ reinstatement
application.” (Compl. ¶ 61.) Plaintiff alleges concerted action from early 2009, and at best this conduct
could be construed as an agreement beginning in early to mid-2010. Yet, even read favorably for the
Plaintiff, this does not “[raise] a suggestion of a preceding agreement.” Howard Hess Dental Labs., 602
F.3d at 256 (quoting Twombly, 550 U.S. at 557). Plaintiffs’ allegations cannot be read to allege an
agreement at all, but instead are replete with statements that “do no more than intimate ‘merely parallel
conduct that could just as well be independent action.’” Id.
4
conjunction with a more specific allegation—for example, identifying a written
agreement or even a basis for inferring a tacit agreement, ... but a court is not required to
accept such terms as a sufficient basis for a complaint.” Id. at 557 (quoting DM
Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (quotation
marks omitted)).
Even in Plaintiff’s Opposition Brief he both explicitly and tacitly asks the Court
to infer what is not actually in his Complaint. (See, e.g., Pl.’s Opp’n at 35 (“[T]he
necessary implication to be derived [from the use of the “substitute criteria”] is that the
Defendants collectively relied upon these criteria to prevent Dr. Nahas from competing
with them.”); id. (“[T]he entire thrust of the Plaintiff’s Complaint establishes that … the
Defendants conspired to create “Substitute Criteria” that were impossible to meet.”); id.
(“The fact that all of the Defendants refused to cooperate with Plaintiff Nahas, despite the
clear terms in the [Order] … further establishes concerted and collusive action.”); id. at
36 (“The Plaintiff has alleged that nearly all the actions taken by the Defendants after the
entry of the [Order] ‘demonstrate collusion and conspiracy to unlawfully and wrongfully
prevent Dr. Nahas from obtaining his remaining privileges for anticompetitive
purposes.’”) (quoting Compl. ¶ 73).)
What Plaintiff has pleaded is the outcome of a process which he considers
patently unfair and unjust, and which allegedly had anticompetitive effects. However,
Plaintiff has not stated a claim under Section 1 of the Sherman Act because he has not
pleaded factual matter, anywhere in his Complaint, which suggests that an agreement was
made by Defendants. For this reason, Count I of the Complaint, restraint of trade in
violation of Section 1 of the Sherman Act, will be dismissed.
c. Section 2 Sherman Act Claim – Count II
Plaintiff also alleges that Defendants conspired and agreed to monopolize the
endovascular intervention market by restricting Plaintiff’s endovascular privileges, and as
a result, patients not treated by Defendants were sent to another market to obtain
endovascular intervention.
The Section 2 conspiracy claim has four elements which a plaintiff must allege:
“(1) an agreement to monopolize; (2) an overt act in furtherance of the conspiracy; (3) a
specific intent to monopolize; and (4) a causal connection between the conspiracy and the
injury alleged.” Howard Hess Dental Labs, 602 F.3d at 253 (citing United States v.
Yellow Cab Co., 332 U.S. 218, 224–25 (1947); Am. Tobacco Co. v. United States, 328
U.S. 781, 788, 809 (1946)).
For the same reasons that Plaintiff’s Section 1 claim fails, his Section 2 claim
fails. Where a party alleges conspiracy to monopolize under Section 2, such a claim also
requires the existence of an agreement. Howard Hess Dental Labs, 602 F.3d at 254. For
the reasons discussed supra, Plaintiff has not pleaded facts which suggest that an
agreement was made by Defendants. Accordingly, Count II of the Complaint, conspiracy
to monopolize in violation of Section 2 of the Sherman Act, will be dismissed.
B. Federal Civil Rights Claims
a. Section 1981 Claim – Count III
“Section 1981 prohibits ‘racial’ discrimination in the making of private and public
contracts.” White v. Williams, 179 F. Supp 2d. 405, 419 (D.N.J. 2002) (citing Pamintuan
v. Nanticoke Mem. Hosp., 192 F.3d 378, 385 (3d Cir. 1999)).
To survive a motion to dismiss, a plaintiff must allege facts indicating that: “(1)
[plaintiff] is a member of a racial minority; (2) intent to discriminate on the basis of race
by the defendant; and (3) discrimination concerning one or more of the activities
enumerated in the statute.” Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)
(citing Yelverton v. Lehman, No. Civ. A. 94–6114, 1996 WL 296551, at *7 (E.D.Pa.
June 3, 1996), aff'd. mem., 175 F.3d 1012 (3d Cir.1999)).
Here, the Complaint fails to allege sufficient facts to state a plausible § 1981
claim against Defendants. A plaintiff must allege facts supporting each of the elements
of his claim, and not merely the elements themselves. The Complaint alleges in multiple
locations that Defendants’ opposition to Plaintiff’s privileges being reinstated, and their
alleged unfair discipline imposed, was based upon racial animus due to his Middle
Eastern background. However, it fails to allege any facts supporting discrimination on
the basis of his race. Alleging wrongdoing, and alleging that the victim of the wrong is a
racial minority, without more, is insufficient to plead discrimination. Where a pleading
“alleges an abundance of wrongdoing,” but “fails to allege any facts supporting the
conclusion that those acts were motivated by discrimination on the basis of race,”
dismissal of a § 1981 claim is proper. Gross v. R.T. Reynolds, 487 F App’x 711, 716 (3d
Cir. 2012). Stating “in conclusory fashion” that the reason behind alleged wrongs is
discriminatory racial animus is insufficient. Id.
In arguing that his pleadings as to racial discrimination are sufficient, Plaintiff
evidently relies on Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which he
understands to mean that there is a general preference for being allowed to engage in
discovery. (See Pl.’s Opp’n at 46-47.) In Swierkiewicz, the Supreme Court found that
an employment discrimination complaint did not have to satisfy a heightened pleading
requirement because it “detailed the events leading to [the plaintiff’s] termination,
provided relevant dates, and included the ages and nationalities of at least some of the
relevant persons involved with his termination.” Swierkiewicz, 534 U.S. at 514.
However, the Third Circuit has since indicated in a published opinion that Swierkiewicz
“has been specifically repudiated by both Twombly and Iqbal . . . at least insofar as it
concerns pleading requirements . . . .” Fowler, 578 at 211. Thus, to the extent that
Plaintiff relies on Swierkiewicz’s pleading standard, the Court finds that it must apply the
heightened standards set forth in Twombley and Iqbal instead. Plaintiff generally asserts
that he has pled sufficient facts, and promises that these facts “presage that abundant
evidence of discriminatory intent will be forthcoming.” (Pl.’s Opp’n at 48.) While he
need not furnish evidence to survive a motion to dismiss, conclusory allegations coupled
with a promise that evidence will come later is patently insufficient.
The allegations supporting racial discrimination that Plaintiff sets forth in his
Complaint are that, to his knowledge: (1) Plaintiff is the only physician who has not had
his privileges reinstated after receiving a positive recommendation from the Credentials
Committee; (2) Plaintiff is the only physician to have his suspension announced in a
written communication to staff; (3) Defendants refused to follow the court ordered
original criteria and placed more stringent requirements upon Plaintiff for obtaining and
retaining his privileges; (4) Defendants allowed other physicians, who were subject to a
medical peer review, to respond to the reviewers’ concerns and/or to take corrective
action before summary suspension and termination of privileges; and (5) Defendants
allowed other physicians who were alleged to have committed wrongful acts to continue
their SMC practice. (Compl. ¶ 163.) Plaintiff also generally asserts that Defendants
treated him differently than other non-minority physicians similarly situated for a host of
reasons, pointing to many of the same violations alleged elsewhere. (Id. ¶ 162.)
Despite these allegations, Plaintiff has offered insufficient factual matter to
bolster what are largely legal conclusions. Plaintiff does not provide relevant
characteristics of other similarly situated physicians who did or did not have their
privileges reinstated or any factual allegations regarding their circumstances. He does
not provide details of any other physician suspensions at SMC, including the minority or
non-minority status of those physicians. The Court is not convinced that Plaintiff has
pleaded sufficient facts that tend to show the “substitute criteria” applied by the MEC
were unreasonable as compared to the original criteria. Nor is it clear that other nonminority physicians had ever been subject to and satisfied the original criteria in the first
place. Again, where Plaintiff suggests other physicians were treated differently regarding
medical peer review and summary suspension, he fails to set forth any relevant
characteristics or similar circumstances from which the Court could infer discriminatory
treatment of Plaintiff due to his minority status.5
The only instance where Plaintiff references an action taken against him that was
not taken against a similarly situated individual relates to SMC’s failure to convene an
Plaintiff’s assertion is also apparently based on his claim that federal law limits summary suspensions to
situations “where the failure to take such an action may result in an imminent danger to the health of any
individual,” suspending his privileges was not required to prevent imminent danger to the health of his
patients, and therefore Defendants acted unlawfully. (Compl. ¶ 105 (citing 42 U.S.C. § 11112(c)(2)).) Not
only is this conclusory, it is a misleading use of this federal law to bolster his arguments. That same
statute, in § 11112(c)(1)(B) states that the procedures in 11112(a)(3), notice and fair hearing, are not
required “in the case of a suspension or restriction of clinical privileges, for a period of not longer than 14
days, during which an investigation is being conducted to determine the need for a professional review
action.” Plaintiff acknowledges in his complaint that the summary suspension was only for 14 days, and he
does not contend that an investigation was not taking place to determine the need for professional review
action. Without more, Plaintiff has not set forth enough information to suggest that Defendants improperly
applied § 11112(c) with respect to his summary suspension.
5
Investigating Committee and impose sanctions on SMC Chief of the Department of
Surgery, Dr. Galler, who allegedly reviewed and approved some of the procedures
Plaintiff was investigated for by the National Peer Review Corporation. (See id. ¶ 120.)
However, Plaintiff does not assert whether Dr. Galler is a minority or non-minority, and
provides no basis for determining how Plaintiff was treated differently as a result of his
race.
Of course, Plaintiff is not required to plead comparator evidence to support an
inference of discrimination. “Such an inference could be supported in a number of ways,
including, but not limited to, comparator evidence, evidence of similar racial
discrimination of other employees, or direct evidence of discrimination from statements
or actions by her supervisors suggesting racial animus.” Golod v. Bank of America
Corp., 403 Fed. Appx. 699, 702 n.2 (3d Cir. Dec. 13, 2010) (citing Swierkiewicz, 534
U.S. at 511-12). Yet, Plaintiff has provided none of this sort of information, or any facts
which support his claim. What the Court is left with are numerous assertions that
Defendants were motivated by racial animus, but no factual matter suggesting that
Defendants actually discriminated against Plaintiff on account of his minority status.
Taken individually and taken as a whole, Plaintiff’s facts do not tip the scale from
“sheer possibility” to plausibility. Iqbal, 556 U.S. at 678. Plaintiff has not pleaded facts
supporting an inference of discrimination. For this reason, Count III of the Complaint,
violation of Plaintiff’s civil rights under § 1981, will be dismissed.
b. Section 1985 Claim – Count IV
Plaintiff alleges that Defendants’ actions were undertaken as part of a conspiracy,
with the purpose of depriving him of the equal protection of the law, in violation of 42
U.S.C. § 1985(3).
To survive a motion to dismiss, a plaintiff must assert: “(1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges and immunities under the laws;
and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his
person or property or deprived of any right or privilege of a citizen of the United States.”
Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2005) (citing United Bhd. Of
Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)).
Plaintiff has offered no information supporting his contention that Defendants
were part of a conspiracy. “[A]llegations of a conspiracy must provide some factual
basis to support the existence of the elements of a conspiracy: agreement and concerted
action.” Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir.
2009) (citing Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)). For the
same reasons, discussed supra, Plaintiff’s claims for violation of Sections 1 and 2 of the
Sherman Act were inadequate, i.e., for failing to sufficiently allege concerted action or an
agreement, Plaintiff’s § 1985(3) claim is deficient. Accordingly, the Court will dismiss
Count IV of the Complaint, conspiracy to violate civil rights under § 1985.
C. Lanham Act Claim – Count VII
Plaintiff alleges that Defendants have misrepresented the characteristics and
qualities of Plaintiff’s services and commercial activities in violation of § 43(a) of the
Lanham Act. This provision indicates that:
Any person who, on or in connection with any goods or services, or any container
for goods, uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which . . . in
commercial advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person's goods, services, or
commercial activities, shall be liable in a civil action by any person who believes
that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B).
A Plaintiff asserting a violation of section 1125(a)(1)(B) must show that (1)
defendant made a false or misleading statement in a commercial advertisement or
promotion about its own or the plaintiff’s product or service; (2) the statement actually
deceived or at least had a tendency to deceive a substantial portion of the intended
audience; (3) the deception was material in that it likely influenced purchasing decisions;
(4) the advertised product traveled in interstate commerce; and (5) the plaintiff was likely
to be or was injured by the false or misleading statement. Innovasystems, Inc. v. Proveris
Scientific Corp., No. 13-5077, 2014 WL 3887746, at *6 (D.N.J. Aug. 6, 2014) (citing
Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 872 (3d Cir. 1992)).
Evidently, the misrepresentations which Plaintiff believes support a Lanham Act
claim consist of (1) a letter sent August 24, 2011 from Defendant Nachtigall to Plaintiff,
(2) SMC’s public announcement of Plaintiff’s fourteen-day suspension, and (3)
unspecified “false and defamatory comments” made to patients and staff about the quality
of Plaintiff’s services. (Compl. ¶¶ 195-201.)
Plaintiff has not cited any law where a Lanham Act claim was stated under
circumstances even remotely similar to the instant case. A Lanham Act claim is not a
statutory defamation claim that can be brought for “maligning the [plaintiff him]self, but
rather a remedy for misrepresentation in advertising about a particular product or
commercial service.” Syngy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570, 578 (E.D. Pa.
1999) (citing U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d
914,921 (3d Cir. 1990)); see also Chovanes v. Thoroughbred Racing Ass’n, No. 99-185,
2001 WL 43780, at *9 (E.D. Pa. 2001) (a “garden variety defamation and/or commercial
disparagement” claim does not amount to a Lanham Act cause of action”).
Here, Plaintiff does not even allege that the August 24, 2011 letter from
Defendant Nachtigall was ever distributed to anyone other than Plaintiff. “Statements …
not contained in a commercial advertisement or promotion are not actionable under the
Lanham Act.” Cape Bank v. VSES Galloway, Inc., No. 14-5293, 2014 WL 4271951, at
*3 (D.N.J. Aug. 29, 2014) (internal citation omitted). The facts pled in the complaint
cannot plausibly support a finding that a letter from Nachtigall to Plaintiff was a
“commercial advertising or promotion,” as required by the plain language of the Lanham
Act. Similarly, the announcement to hospital staff announcing Plaintiff’s suspension
cannot seriously be considered a commercial advertisement or promotion. Further,
Plaintiff does not allege that any “false or misleading” information was contained in the
announcement, which is also an unambiguous requirement of the Lanham Act. Rather,
he pleads that his suspension was announced “in a letter circulated to the entire hospital
staff that Dr. Nahas was suspended and would not be allowed on the property.” (Compl.
¶ 108.) Plaintiff does not plead that any of this information is false or misleading; in fact,
his allegations appear to support the truth of the material in the letter, as he pleads that he
was in fact suspended, and required to stay away from the hospital during his suspension.
Finally, although Plaintiff alleges “false and defamatory comments” to patients and staff,
he pleads nothing suggesting that such “comments” could be construed as “commercial
advertising and promotion.” In addition, failure to plead the nature of the false and
defamatory statements in more than conclusory fashion would further be fatal to
Plaintiff’s Lanham Act claim. Santiago, 629 F.3d at 131.
Plaintiff’s Lanham Act claim cannot be sustained, as even if all of Plaintiff’s
allegations are taken as true, he has not satisfied the elements of § 1125(a). For this
reason, the Court dismisses Count VII of the Complaint, violation of Section 43(a) of the
Lanham Act.
D. Due Process Claim - IX
Plaintiff’s claim that Defendants violated his Constitutional Due Process rights is
not a model of clarity. At the outset, the Court notes that Plaintiff has not specified
which Constitution was violated (i.e., federal or State),6 nor has he alleged which law or
laws entitle him to relief. However, even if Plaintiff had stated a cause of action for a
violation of the Federal Constitution, the Court finds that he has not properly alleged state
action.
If he wishes to state a cause of action for violation of his due process rights under
the Fifth and Fourteenth Amendments by Defendants, Plaintiff must invoke 42 U.S.C. §
1983. Two elements must be alleged in order to recover under § 1983: (1) deprivation of
a constitutional right by the defendant, (2) acting under the color of law. Piecknick v.
Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Private action is
immune from the restrictions of the Fourteenth Amendment. Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 349 (1974). In determining whether private conduct allegedly
causing the constitutional deprivation may fairly be attributable to the State, the Court
For reasons discussed infra, the Court declines to address Plaintiff’s state law claims, including any due
process claim under the New Jersey Constitution.
6
conducts a two part analysis. “First, the deprivation must be caused by the exercise of
some right or privilege created by the State or by a rule of conduct imposed by the state
or by a person for whom the State is responsible … Second, the party charged with the
deprivation must be a person who may fairly be said to be a state actor.” Lugar v.
Edmondson Oil Co, Inc., 457 U.S. 922, 937 (1982).
The only relevant allegation is that Defendants did not comply with the provisions
of the Health Care Quality Improvement Act (“HCQIA”). (Compl. ¶¶ 217-18.) Even if
the Court accepts that the HCQIA is a rule of conduct imposed by the State, Plaintiff has
not alleged why the Court should consider Defendants to be state actors. Here, only
private actors were responsible for the decision to deny reinstatement of Plaintiff’s
endovascular privileges. Plaintiff has not pleaded facts demonstrating that “there is a
sufficiently close nexus between the State and the challenged action of the regulated
entity so that the action of the latter may be fairly treated as that of the State itself.”
Jackson, 419 U.S. at 351. Nor has the plaintiff alleged facts to suggest that the State “has
exercised coercive power or has provided such significant encouragement, either overt of
covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky,
457 U.S. 991, 1004 (1982).
For these reasons, if Plaintiff has attempted to state a claim under § 1983, his
claim lacks sufficient factual matter to be sustained. Accordingly, so far as Plaintiff
alleges a violation of his Due Process rights under the Federal Constitution, Count IX of
the Complaint will be dismissed.
E. State Law Claims
Because all of Plaintiff’s claims arising under federal law will be dismissed, and
Plaintiff has pleaded no other basis for jurisdiction, the Court will decline to exercise
supplemental jurisdiction over the remaining state-law claims. 28 U.S.C. § 1367(c)(3).
IV.
MOTION TO STAY
As the Court will be dismissing all of Plaintiff’s claims, it need not address
Defendants’ motion to stay these proceedings. Accordingly, Defendants’ motion to stay
the proceedings will be dismissed as moot.7
V.
LEAVE TO AMEND
When a complaint is dismissed for failure to state a claim, leave to amend should
normally be granted. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff does not seek
leave to amend a deficient complaint after a defendant moves to dismiss it, the court must
inform the plaintiff that he has leave to amend within a set period of time, unless
amendment would be inequitable or futile.”)
Here, the Court is unable to conclude that Plaintiff could not possibly amend his
pleading to adequately state his federal claims against Defendants. Therefore, within the
period of time set forth in the Order accompanying this Opinion, Plaintiff may file a
motion seeking leave to amend his Complaint.8
7
The Court notes that Defendants never submitted evidence of whether this matter is the subject of any
other matter pending in any court, which would make it hard for the Court to rule in Defendants’ favor
even if it were to reach the issue. Also, Local Civil Rule 11.2 requires that “The initial pleading, motion or
other paper of any party filed in any case in this Court, other than a criminal action, shall be accompanied
by a certification or other document complying with 28 U.S.C. § 1746 as to whether the matter in
controversy is the subject of any other action pending in any court … and, if so, the certification or other
authorized document shall identify each such action … and all parties thereto.” Plaintiff failed to comply
with this rule.
8
If Plaintiff files a motion for leave to file an amended complaint, he shall attach to the motion a copy of
the proposed amended complaint, as required by Loc. Civ. R. 7.1(f). Additionally, the Court asks that
VI.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss will be GRANTED.
All of the claims against Defendants will be DISMISSED, and Plaintiff may file a
motion for leave to amend his complaint within the time period specified in the Order
accompanying this Opinion. Defendants’ motion to stay the proceedings will be
DISMISSED AS MOOT. An accompanying Order shall issue.
Dated:
ROBERT B. KUGLER
United States District Judge
Plaintiff attach a certification of any other pending action, as required by Loc. Civ. R. 11.2. See supra note
6.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?